F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 30 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 02-3434
v. (District of Kansas)
(D.C. No. 00-CR-40010-JAR)
TROY DEVON FENNELL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. INTRODUCTION
Pursuant to a plea agreement, Appellant Troy Devon Fennell pleaded guilty
to conspiracy to possess with the intent to distribute in excess of 100 grams of
phencyclidine, also known as PCP. At sentencing, the district court attributed
45.4 grams of actual PCP or 785.2 grams of PCP mixture to Fennell when
calculating his base offense level. The district court also refused to grant a
downward adjustment for acceptance of responsibility and imposed an upward
adjustment for obstruction of justice because Fennell originally failed to appear at
sentencing. Finally, the district court increased Fennell’s offense level for
participating in the offense as a supervisor or manager.
Fennell appeals his sentence, contending that the district court erred in
calculating the amount of PCP for his offense level, failing to grant Fennell an
acceptance of responsibility decrease, and assessing an increase for being a
supervisor or manager. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this
court affirms. The district court did not err in calculating Fennell’s base offense
level because the PCP mixture from both bottles attributed to Fennell was at least
700 grams and less than one kilogram under U.S.S.G. § 2D1.1(c)(5).
Additionally, the district court did not err in refusing to grant a decrease for
acceptance of responsibility after assessing an increase for obstruction of justice.
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Finally, the district court did not err in adjusting Fennell’s sentence for being a
supervisor or manager. 1
II. BACKGROUND
In November 1999, an agent for the Drug Enforcement Administration
(“DEA”) searched Greyhound bus passenger Joewan Bevel, who informed the
agent that he was traveling from Los Angeles, California to Kansas City,
Missouri. The agent discovered a mouthwash bottle containing PCP concealed in
Bevel’s waistband. Upon further testing by the DEA, the bottle was found to
contain 392.6 grams of PCP mixture or 22.7 grams of actual PCP. Bevel
identified Fennell as the individual who supplied the drugs for transport to Kansas
City. Bevel further participated in a controlled delivery to the recipient of the
PCP, Anthony Murphy, also known as “Smurf.” Bevel notified Fennell that he
had scheduled the delivery to Murphy. Murphy was arrested while attempting to
pick up the PCP from Bevel.
During the investigation of the Bevel transport, authorities learned that
Lashonda Banks had been arrested at an Oklahoma City bus station the previous
day for carrying a mouthwash bottle filled with PCP. Similar to Bevel, she told
law enforcement that she was going to Kansas City from California. After
1
This court admonishes defense counsel for violating 10th Cir. R.
28.2(A)(2) by failing to attach to appellant’s brief a copy of the district court’s
sentencing decision from which this appeal was taken.
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discovery of the PCP, she informed authorities that Fennell promised to pay her
for the transport. Banks also indicated that she was told that, upon arriving in
Kansas City, Murphy would make arrangements to meet her at the bus station.
The Oklahoma City Police Department measured the bottle possessed by
Banks and discovered that it contained 470 milliliters of PCP. However, a
complete analysis was never conducted; thus, the purity level of the sample was
never determined.
In February 2000, Fennell was arrested in Los Angeles, California on a
federal warrant. He admitted that he had been working with two drug dealers in
Kansas City known as “Hawk” and “Smurf.” He also acknowledged that he was
responsible for finding couriers who would willingly transport the PCP to Kansas
City by bus and that he was paid “a couple hundred dollars” for each transaction
he brokered. Fennell also admitted that he had made the arrangements for both
Bevel and Banks to carry the PCP to Kansas City.
Fennell was indicted on one count of conspiracy to possess with intent to
distribute in excess of 100 grams of a mixture or substance containing PCP and
one count of possession with intent to distribute in excess of 100 grams of a
mixture or substance containing PCP. After cooperating with authorities, Fennell
pleaded guilty to conspiracy to possess with intent to distribute in excess of 100
grams of a mixture or substance of PCP pursuant to a plea agreement. The
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district court dismissed the possession with intent to distribute count. Fennell,
however, failed to appear at his sentencing on April 20, 2001 and could not be
located until his arrest on June 25, 2002. At the subsequent sentencing hearing,
he claimed that he did not appear at his original sentencing because he was
concerned for the safety of his family and did not have the money to travel from
California to Kansas.
The district court sentenced Fennell to 151 months’ imprisonment. The
court attributed to Fennell 45.4 grams of actual PCP or 785.2 grams of PCP
mixture. Fennell was given a base offense level of 30 because the offense
involved at least 700 grams but less than one kilogram of PCP mixture. See
U.S.S.G. § 2D1.1(c) n.(B) (“In the case of a mixture or substance containing PCP,
. . . use the offense level determined by the entire weight of the mixture or
substance, or the offense level determined by the weight of the PCP (actual), . . .
whichever is greater.”) Although the court recognized that the purity of the PCP
confiscated from Banks had not been tested, it concluded that the untested amount
had the same purity level because the mouthwash bottles were transported within
one day and involved the same source, quantity, and participants.
The court also increased Fennell’s base offense level for his role in the
offense under U.S.S.G. § 3B1.1(c) by concluding that Fennell’s role was that of a
supervisor or manager because he recruited and paid Bevel to transport the drugs,
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interacted with and paid Banks as a courier, purchased the bus ticket for Bevel,
acted in a supervisory role to Murphy, and was the contact person for arranging
the deliveries. In addition, the court declined to apply the acceptance of
responsibility decrease as recommended in the plea agreement because Fennell
breached the agreement by originally failing to appear for sentencing. Instead,
the court increased Fennell’s offense level for obstruction of justice under
U.S.S.G. § 3C1.1 for absconding bond and failing to appear. The court further
noted that it would be inconsistent for the court to apply both the acceptance of
responsibility downward adjustment and the obstruction of justice enhancement.
III. STANDARD OF REVIEW
This court reviews de novo the district court’s interpretation and
application of the Sentencing Guidelines. United States v. Wiseman, 172 F.3d
1196, 1217-18 (10th Cir. 1999). The district court’s factual findings are reviewed
for clear error, with deference given to the district court’s determinations of
credibility. Id.
IV. DISCUSSION
A. Drug Quantity
Fennell argues that the district court erred in calculating his drug quantity
and that his base offense level should have only been computed using the bottle
seized from Bevel. The government carries the burden of proving drug quantity
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by a preponderance of the evidence. United States v. Wacker, 72 F.3d 1453, 1477
(10th Cir. 1996).
Under the Sentencing Guidelines, the sentencing court calculates the
defendant’s offense level by using the greater of the entire weight of the PCP
mixture or the weight of actual PCP. U.S.S.G. § 2D1.1(c) n.(B). The Guidelines
further provide for a base offense level of 30 when an offense involves at least
700 grams but less than one kilogram of PCP mixture. Id. § 2D1.1(c)(5). On the
other hand, the base offense level is 28 when the actual PCP amount is at least
forty but less than seventy grams. Id. § 2D1.1(c)(6). Accordingly, pursuant to
U.S.S.G. § 2D1.1(c) n.(B), the district court was obligated to utilize the weight of
the mixture in calculating Fennell’s offense level.
Fennell argues that the district court erred in assigning the same purity
level of PCP from the bottle seized from Bevel to the bottle seized from Banks
because the purity level of the PCP in the Banks bottle was never tested. After
review of the record, this court concludes that the purity level of the Banks bottle
is irrelevant because the district court calculated Fennell’s base offense level by
using the greater weight of the PCP mixture contained in the bottles seized from
Bevel and Banks. Fennell neither contests that the bottle seized from Banks
contained PCP nor that the weight of the bottle was identical to the bottle seized
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from Bevel. Thus, the district court did not clearly err in making its drug quantity
calculation.
B. Acceptance of Responsibility
Fennell contends that the district court erred in not granting a decrease for
acceptance of responsibility. The district court’s determination of whether the
defendant has accepted responsibility is entitled to great deference and “should
not be disturbed unless it is without foundation.” United States v. Amos, 984 F.2d
1067, 1071-72 (10th Cir. 1993).
The Sentencing Guidelines permit a two-level decrease in a defendant’s
offense level “[i]f the defendant clearly demonstrates acceptance of responsibility
for his offense.” U.S.S.G. § 3E1.1(a). If the defendant enters a timely plea of
guilty, an additional decrease of one level is allowed. Id. § 3E1.1(b). However,
conduct which results in an enhancement for obstruction of justice “ordinarily
indicates that the defendant has not accepted responsibility for his criminal
conduct.” Id. § 3E1.1, cmt. n.4. Only under extraordinary circumstances may the
district court apply both an obstruction of justice increase and an acceptance of
responsibility decrease. Id.
Fennell asserts that because he freely admitted his guilt and saved the court
and the government time and resources otherwise necessary for trial, his
extraordinary personal circumstances of protecting his family and not having the
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money to travel qualified him for the acceptance of responsibility adjustment.
Although entering a plea of guilty prior to commencement of trial and an
admission of the conduct is evidence of acceptance of responsibility, it may be
“outweighed by conduct of the defendant that is inconsistent with such acceptance
of responsibility.” United States v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996)
(quotation omitted). Moreover, a defendant’s failure to appear at sentencing
tends to interfere with the disposition of the case and impedes or delays the
administration of justice. United States v. St. Julian, 922 F.2d 563, 571 (10th Cir.
1990).
In this instance, the district court concluded that it would be inconsistent to
apply both the acceptance of responsibility and the obstruction of justice
adjustments. The court determined that because Fennell elected not to show at
sentencing and to spend eighteen months “on the run,” he was disqualified from
an acceptance of responsibility reduction. Fennell’s actions subsequent to his
guilty plea did not clearly demonstrate an acceptance of responsibility and his
circumstances were not so extraordinary as to prevent him from contacting the
court for eighteen months. Hence, the district court did not err in refusing to
grant the adjustment.
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C. Role in the Offense
Fennell argues that the district court erred in imposing a two-level increase
for his role as a supervisor or manager in the offense. The government has the
burden to prove by a preponderance of the evidence the necessary facts for the
adjustment to apply. United States v. Anderson, 189 F.3d 1201, 1211 (10th Cir.
1999).
Section 3B1.1(c) of the Sentencing Guidelines provides a two-level
increase “if the defendant was an organizer, leader, manager, or supervisor in any
criminal activity.” In assessing whether the defendant played such a role, the
court considers
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
U.S.S.G. § 3B1.1, cmt. n. 4.
Fennell contends that even though he arranged for the transport of PCP, he
was at most a middleman and not an organizer, leader, manager, or supervisor.
The district court determined that Fennell could be characterized as a supervisor
or manager because he recruited and paid Bevel, interacted with and paid Banks,
arranged for the travel and transport of the drugs, had a supervisory role over
Murphy, and was a central contact person for the transactions.
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Specifically, Fennell relies on Anderson in which this court remanded for
resentencing because there was insufficient evidence of the defendant’s
involvement in the conspiracy to support the application of the enhancement. 189
F.3d at 1212. In Anderson, this court determined that distributing drugs as a
middleman and cooking cocaine was not adequate evidence to show that the
defendant was an organizer, leader, manager, or supervisor. Id. at 1211-12 & n.6.
Anderson, however, is distinguishable because Anderson was merely a supplier of
drugs and there was no evidence that he recruited others or controlled their
activity. Here, Fennell concedes that he recruited Bevel and made arrangements
to transport the drugs, as well as acted as a contact between the couriers and the
drug recipient. Thus, the evidence supported the district court’s findings. Given
the involvement of Fennell in the conspiracy, the district court’s enhancement
under § 3B1.1(c) was not erroneous.
V. CONCLUSION
Based upon the foregoing reasons, Fennell’s sentence is AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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